THE STATE OF MAHARASTRA Vs. GANESH KISAN MUKNE

JUDGEMENT

(1.) Being aggrieved by the judgment and order passed by the Learned ii Ad-hoc, Assistant Sessions Judge, Thane, dtd. 15/12/2002 in Sessions Case No. 42/98 whereby the Respondents (Orig. Accused) was acquitted of offences punishable under Sec. 376 of Indian Penal Code (for short "IPC") the present Criminal Appeal is preferred by the Appellant - State of Maharashtra.

(2.) Heard learned APP, Mr V.B. Konde-Deshmukh for the Appellant - State.

(3.) The case of the prosecution emerged out from the report lodged at the instance of prosecutrix (PW 5) and which can be summarized as under: The prosecutrix along with her husband and a newly born baby shifted to the place of incident i.e. at Kalwa, Dist. Thane as the cousin uncle was working as watchman in a building under construction. The prosecutrix and her husband was in search of job and to earn livelihood started residing in an open area at first floor in the said building under construction. On 11/9/1997 at about 7.30 pm accused reached the area wherein prosecutrix and her husband were residing along with newly born child. Kerosene lamp was in use for illumination. The accused was having a talk with the husband of prosecutrix. The accused handed over the money to the husband of prosecutrix and asked him to get some food item i.e. vegetable and chapati from a restaurant. Husband of the prosecutrix returned with the food item. The accused again asked husband of the prosecutrix to bring Masala pan. When the husband of the prosecutrix left the spot, the accused came near the cot where the prosecutrix was lying. Accused snatched the baby from the prosecutrix and kept the baby on bed and make the baby to sleep. Then accused dragged the prosecutrix to the next room i.e. kitchen, made the prosecutrix lye on the kitchen platform and by removing his apparels committed rape on the prosecutrix. Though, the prosecutrix was resisting accused did not pay heed and committed forcible intercourse. Husband of the prosecutrix (PW 1) reached the place and started calling the prosecutrix by her name. Accused jumped from the window and fled away from the spot. The prosecutrix and her husband approached the police station and lodged the report against the accused. Ramchandra Gaikwad (PW 7), Assistant Sub-Inspector, was the duty officer at Kalwa Police Station at the relevant time. The report was lodged at the instance of prosecutrix and was reduced into writing and offence was registered on the basis of the report. As the investigating agency was set in motion, Ajij Gulam Attar (PW 9) took the necessary steps in the process of investigation, such as, effecting arrest of the accused in presence of the panchas, drawing the arrest panchanama, seizure of clothes accused as well as seizure of clothes of prosecutrix, forwarding the seized articles to chemical analyzer, collecting the report from the CA laboratory and on finding that there is sufficient evidence against the accused charge-sheet was filed against the accused. As the case being exclusively triable by the Court of Sessions, same was committed to the Court of Sessions for trial. The accused pleaded not guilty and claimed trial. The defence of the accused was of false implication. The accused was subjected to statement under Sec. 313 of the Cr.P.C. exposing the incriminating circumstances against him.